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Spying spouses and their high-tech tools: divorcing spouses who try to gain the upper hand in family law litigation by catching the other party in the act may violate federal and state eavesdropping and privacy statutes. Here's a look at these laws and how they might apply in various true-to-life scenarios.

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A phone call between a non-custodial parent and his child. An illicit e-mail from an estranged spouse to her paramour. Downloaded bank records from an undisclosed bank account.

Litigants in family law cases manage to obtain all kinds of evidence that they believe will clinch their cases for them. But in doing so they may have violated one or more statutes regulating eavesdropping or abuse of computer and other technology. Family lawyers need to know both the federal and state laws that apply to eavesdropping in its various incarnations in order to counsel clients who walk into their offices with evidence they hope will win their cases.

There are three statutes, one state and two federal, that govern most eavesdropping and similar activities. Some of the statutes are quite complex, so attorneys should review them thoroughly. However, this overview will identify major issues.

The Illinois statute

The Illinois Eavesdropping Act (Illinois Act) (1) is a criminal statute that prohibits eavesdropping in several forms. Generally, eavesdropping is the knowing and intentional use of an eavesdropping device to hear or record all or any part of any conversation. It also is the interception, retention, or transcription of electronic communication unless the violator does so either with the consent of all of the parties to the conversation or electronic communication or under approved circumstances.

Eavesdropping is also the manufacturing, assembling, distribution, or possession of any electronic, mechanical, eavesdropping, or other device knowing, or having reason to know, that the design of the device renders it primarily useful for the surreptitious hearing or recording of oral conversations or the interception, retention, or transcription of electronic communications and the intended or actual use of the device is contrary to the provisions of the statute.

In addition, a person eavesdrops if he or she uses or divulges any information that he or she knows or reasonably should know was obtained through the use of an eavesdropping device, unless the use is specifically authorized. (2)

Eavesdropping is not a minor offense in Illinois. It is a felony punishable by one to three years of imprisonment for a first offense. Repeat offenders are subject to two to five years of imprisonment. (3)

The Illinois Act creates a civil cause of action for victims of eavesdropping. (4) However, the plaintiff must still prove the usual elements of a tort. (5) remedies include injunctions prohibiting further eavesdropping, actual and punitive damages.

One of the most important provisions is the exclusionary rule. Any evidence obtained in violation of the Act is not admissible in any civil or criminal trial, administrative or legislative inquiry or proceeding, or grand jury proceeding. The fruit of the poisonous tree doctrine also applies to any evidence obtained from evidence obtained in violation of the Act. (6)

The federal statutes

The primary federal statute is the Electronic Communications Privacy Act (ECPA), (7) which is divided into three sections. Title I is the original Wiretap Act, which was amended in 1986 to include electronic communication. Title II is the Stored Communications Act, (8) which regulates access to facilities that store electronic communications, such as Internet service providers. Title III governs the use of pen registers and trace and trap devices, such as caller ID on phones, and generally does not apply to eavesdropping.

The other federal statute is the Computer Fraud and Abuse Act (CFAA), (9) which governs unauthorized access to computers and their information.

The Wiretap Act. The Wiretap Act resembles the Illinois Act, though there are some important differences, including the definition of what constitutes eavesdropping. The Wiretap Act, like the Illinois Act, is primarily a criminal statute, but the Wiretap Act prohibits the intentional interception, attempted interception, or procurement of any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication or use of any electronic, mechanical or other type of device to intercept any oral communication.

The intentional disclosure or use of the contents of any wire, oral, or electronic communication that the person knows or has reason to know was obtained in violation of the Wiretap Act is also prohibited. Violating the Wiretap Act carries a maximum incarceration sentence of not more than five years and/or a maximum fine of $250,000 per violation.

The Wiretap Act also provides for a civil cause of action. Damages are the greater of the actual damages, $100 per day per violation or $10,000 total per violation. A party may also recover reasonable legal fees and litigation costs, as well as punitive damages if the violation was wanton, reckless, and malicious. Like the Illinois Act, the Wiretap Act has an exclusionary rule to which the fruit of the poisonous tree doctrine applies. the Stored Communications Act.

The Stored Communications Act prohibits the intentional access without authorization of a facility through which an electronic communication service is provided or intentional access that exceeds authorization of such a facility and obtaining, altering, or preventing authorized access to a wire or electronic communication while it is in electronic storage. (10) Essentially, the Act protects the integrity of Internet service providers like AOL and other services and facilities such as Google.

The Stored Communications Act is also a criminal statute. A first offense not committed for commercial advantage or gain or in furtherance of a crime is punishable by a fine and/or up to one year imprisonment. For a second offense, a violator may receive up to five years imprisonment. If the violation is committed for commercial advantage or gain or in furtherance of a crime, a first offense is punishable by a fine and/or five years imprisonment, and a second offense carries up to ten years imprisonment.

Likewise, the Stored Communications Act provides for a civil cause of action against any person or entity, other than the federal government, if the violator knowingly or intentionally violates the statute. Remedies include actual damages or at least $1000, as well as attorney's fees and costs and any equitable relief. Punitive damages are available if the violation was willful or intentional. The federal government may only be held liable for willful violations. The plaintiff may recover actual damages or at least $10,000 and litigation costs.

Despite their similarities, the Stored Communications Act differs from the Wiretap Act in at least one key way: it does not contain an exclusionary rule. Thus, even though certain actions may violate the statute, it may be possible to use any information or documents obtained as evidence in divorce, custody, and other proceedings.

The Computer Fraud and Abuse Act. The other notable federal statute, the Computer Fraud and Abuse Act (CFAA), (11) resembles the Stored Communications Act in that it also prohibits unauthorized access to information. The CFAA governs access of various computers and/or their information without or exceeding authorization. Although Congress originally intended the CFAA to protect the federal government's own computers, it also protects private computers used "in interstate or foreign commerce or communication," which includes any computer connected to the Internet.

Family lawyers need to be concerned primarily with two methods of violating the CFAA. One is intentionally accessing without, or exceeding, authorization and obtaining information contained in a financial record of a financial institution, or of a card issuer, or contained in a file of a consumer reporting agency on a consumer. The second is intentionally accessing without, or exceeding, authorization and obtaining information from any protected computer if the conduct involved an interstate or foreign communication. (12) Thus, the CFAA protects any home computer connected to the Internet.

The CFAA, like the ECPA, is primarily a criminal statute. First time offenders are subject to a fine and/or up to one year in prison so long as the violation was not committed for private financial gain or in furtherance of any other crime or the value of the information obtained does not exceed $5000. Otherwise, a first time offender may receive a fine and/or up to five years imprisonment. Repeat offenders are subject to a fine and/or imprisonment for up to ten years. (13)

Although there is a civil cause of action under the CFAA, it is substantially more limited than causes of action under the other statutes. A plaintiff may only file a civil suit if one of five factors applies. The value of the loss must total at least $5000 during any one-year period. Alternatively, the violation must cause the modification or impairment or potential modification or impairment of a person's medical examination, diagnosis, treatment, or care. If the offense caused physical injury to a person or a threat to public health or safety, a civil cause of action may lie. Finally, a plaintiff may sue civilly if the violation damaged a computer system used by or for a government entity in furtherance of the administration of justice or national defense or security. (14)

Spousal spying

With this framework in mind, what should an attorney do when a client embroiled in a custody battle walks in with an incriminating tape of his estranged wife coaching their child to say that he wants to live with mommy? or with the e-mail correspondence between her husband and his several girlfriends? The answers to those questions depend largely on how the information was obtained and whether the information fits the strict language of the various statutes.

Conversations. In Illinois, all parties to a conversation must consent to its recording except in certain circumstances involving authorized law enforcement personnel. (15) Thus, if dad obtained the tape of mom coaching their child by placing a tap on his home phone and recording their conversation, dad has eavesdropped on mom. This is true even if dad is the custodial parent.

Although the Wiretap Act has been interpreted to allow a custodial parent to give consent for their minor child, (16) the Illinois Act requires the consent of all parties, unlike the Wiretap Act which has an exception for the recording of phone conversations when at least one party consents. So, although dad may be safe in other jurisdictions whose eavesdropping acts track the Wiretap Act, in Illinois it is still eavesdropping.

A recent Illinois case determined that evidence obtained by a joint federal and state investigation was admissible because it was obtained with authorization under the Wiretap Act, even though the Illinois Act prohibited the police actions, since there was no evidence that the federal and state authorities colluded to avoid the Illinois Act's requirements. (17) However, that case appears to apply only to police actions made in good faith and consistent with the Wiretap Act. The case does not seem to leave room for private individuals who act within the confines of the federal law while violating the Illinois state law.

Dad has other options, however. Although recording the conversation is illegal in Illinois, dad can listen in on the conversation on an unaltered extension telephone without violating the Illinois Act. (18) However, dad does not have unfettered access to the conversations between their child and his estranged wife. Unless he listens to the conversations out of a good faith concern for the child's welfare, (19) he will run afoul of the Wiretap Act, which only has a limited exception for the use of extension telephones. (20)

Assuming dad listens to the conversation on an unaltered extension phone out of a good faith concern for the child's welfare, his counsel can question mom about the incident on cross-examination or ask that the court conduct an in camera examination of the child and question the child about the incident because parties to a conversation may testify as to the contents of that conversation, even if the recordings themselves are inadmissible. (21) If mom learns of the incident and attempts to question dad regarding it, he can assert his Fifth Amendment rights if he is concerned that his actions may not be considered to be in good faith. (22)

What if dad did not intend to record the conversation but his answering machine accidentally recorded part of it? Because both the Illinois Act and Wiretap Act require intentional actions, accidental recordings are not eavesdropping. (23) This would also be true if dad's cell phone accidentally intercepted mom's conversation on her own cell phone. Interception of conversations or electronic communication by devices that operate on radio waves or other public frequencies generally is not eavesdropping because privacy is not ensured on such devices and the interception is not intentional. (24)

In addition, dad's recording may not be prohibited depending on whether it is actually a conversation. If the recording, or any portions of it, has sounds that do not constitute a conversation, the recording or portion will be admissible. (25) Thus, if mom does not talk with their child but instead plays disturbing music over the phone, the recording does not violate either eavesdropping act.

Even if dad purposely recorded the conversation between mom and their child, there is one last recourse that dad's counsel may want to weigh and consider. If there is a child representative or guardian ad litem involved, that person may be able to listen to the recording. If reviewing the recordings would materially advance the representative's ability to perform his or her statutory duty to defend and protect the best interests of the child, the recordings could be disclosed to the representative without violating the Illinois Act. (26)

This is a calculated risk, however, both because the recording would still be inadmissible as actual evidence and more importantly because dad would still be subject to criminal and/or civil prosecution for his initial violation of the eavesdropping statutes. Thus, attorneys in this type of situation need to counsel their clients very carefully and determine whether the risk of the criminal and civil actions outweighs the benefit of having the representative review the recording.

E-mail. E-mail is even more complicated than conversations and again turns on how the e-mail was obtained. If a wife suspects that her husband is having an affair, she may decide that using spyware would be a good way to track her husband's activities. Spyware may be either hardware or software, but software appears to be both more common and harder to detect.

One version is a keylogging program, which records all of the keystrokes on the keyboard and either stores them for later retrieval or e-mails the results to the program installer. Another program records all of the information displayed on the computer's monitor in a sort of snapshot format so that the installer can reconstruct what information appeared on the monitor at any given time.

Regardless of what form of spyware the wife decides to use, the most important question will be whether the program or hardware intercepts the e-mail. Generally, the federal cases have interpreted the Wiretap Act to require "interception" to occur simultaneously with "transmission." (27) Effectively, the federal courts have defined "interception" as has the National Football League--it can only occur while the information is in transit. If the information is taken after reaching its intended recipient, it may be a fumble but not an interception and thus does not violate the Wiretap Act.

Notably, one federal circuit appears to disagree with the others but it does not expressly reject them. In US v Councilman, when an Internet service provider copied e-mails directed to Amazon. com, the e-mails were "intercepted" within the meaning of the Wiretap Act, regardless of whether they were obtained contemporaneously with the messages' transmissions. (28)

Thus, if the spyware stops the emails as they are being sent or received, then copies and stores them, it is likely eavesdropping. The same is true if the spyware copies the monitor and "sees" the e-mails as they are being received. (29) However, if the wife's spyware records a draft e-mail that is never sent or a love letter typed on Microsoft Word, she likely has not eavesdropped on her husband under either the federal or Illinois acts.

If the computer is connected to the Internet at the time she obtains the information, the wife may violate the CFAA based on its plain language prohibiting the access of a computer protected by virtue of its connection to the Internet beyond her authorization. However, because the CFAA does not have an exclusionary rule, the information she obtains may still be admissible.

Rather than using spyware, the wife may have obtained the e-mails simply by reading her husband's messages stored on Microsoft outlook on the home computer. She probably has not eavesdropped, though, because the emails are stored, not in transmission, at the time she obtained them. (30) They are, in effect, stored in a filing cabinet in the home. Furthermore, her husband could have no expectation of privacy as required by the Illinois Act for his "electronic communication." Even though they are stored, in this case, the e-mails are not even protected by the Stored Communications Act because the home computer may not meet the definition of "electronic storage" and the wife has not accessed the home computer "without authorization."

The wife may obtain the e-mail by guessing or knowing her husband's password and logging into his yahoo or other online account. Although she may not have violated the Wiretap Act, she likely would run afoul of the Illinois Act, the Stored Communications Act and possibly the CFAA.

The Illinois Act prohibits the transcription of electronic communication. Because the husband and his paramour have an expectation of privacy regarding their e-mails, the wife would eavesdrop under the Illinois Act. Furthermore, because the e-mail is stored at an off-site location (yahoo's servers), the wife has intentionally accessed a protected facility without authorization and obtained stored electronic communication, in violation of the Stored Communications Act. (31) Again, the CFAA also appears to be triggered because the computer is protected when connected to the Internet.

Finally, what if the wife suspects her husband but cannot find proof and thus decides to entrap him by pretending to be a different person online and communicating with her husband? In that event, her actions may not violate the Wiretap Act because only one party must consent generally under that Act. She also may not have eavesdropped under the Illinois Act because, as a party participating in the e-mail conversation, she does not intend her communications to be private as required by the definition of electronic communication. (32)

However, this loophole seems inconsistent with the requirement that all parties to oral conversations give consent. Therefore, an attorney again must be especially careful when counseling her client in this situation.

Financial information. Has the wife eavesdropped if instead of obtaining e-mails, her spyware has copied bank account information as her husband downloaded it onto the family computer? Likely, she has not only eavesdropped but violated the Stored Communications Act and CFAA, which provides special protection for financial institutions.

Even if she has not eavesdropped, the wife likely would violate the CFAA and Stored Communications Act if she merely guesses her husband's password and logs into the financial institution's website to view his account balances or transactions. However, simply viewing or copying financial information that the husband previously downloaded onto the family computer may not violate any of the acts as the computer once again is akin to a filing cabinet. (33)

Conclusion

Litigants embroiled in domestic relations cases can become quite creative when trying to find ways to win their cases, not only because of the important issues at stake but also because of the highly charged emotional aspects. Family lawyers need to be particularly careful when their clients present them with incriminating evidence or suggest possible ways to obtain that evidence from their spouses. Even if a particular action may not technically be eavesdropping, it may fall under one of the other statutes.

However, if the information is truly key or important to protect children, it may be worth the risk to attempt to use it. Counsel must carefully and thoroughly warn their clients regarding the possible implications--criminal prosecution, incarceration, hefty fines and alienating the judge presiding over the case, not to mention evidence that becomes wholly inadmissible--before deciding whether the benefits outweigh the risks of disclosing information obtained by eavesdropping.

(1.) 720 ILCS 5/14-1 et seq.

(2.) See 720 ILCS 5/14-2.

(3.) See 720 ILCS 5/14-2 and 730 ILCS 5/5-8-1.

(4.) See 720 ILCS 5/14-6.

(5.) See McDonald's Corp v Levine, 108 Ill App 3d 732, 739, 439 NE2d 475, 480 (2d D 1982).

(6.) See 720 ILCS 5/14-5.

(7.) 18 USC [section] 2510-2522.

(8.) 18 USC [section] 2701-2712.

(9.) 18 USC [section]1030.

(10.) See 18 USC [section]2701.

(11.) See 18 USC [section] 1030.

(12.) See 18 USC [section] 1030(a)(2).

(13.) See 18 USC [section] 1030(c).

(14.) See 18 USC [section] 1030(g).

(15.) See In re Marriage of Almquist, 299 Ill App 3d 732, 736, 704 NE2d 68, 71 (3d D 1998).

(16.) See, for example, Campbell v Price, 2 F Supp 2d 1186 (ED Ark 1998) (custodial father could consent for child to record conversations between child and former wife when he believed the conversations were disturbing the child).

(17.) See People v Coleman, 227 Ill 2d 426, 882 NE2d 1025 (2008).

(18.) See People v Gaines, 88 Ill 2d 342, 430 NE2d 1046 (1981).

(19.) See Scheib v Grant, 22 F3d 149 (7th Cir 1994).

(20.) See, for example, Glazner v Glazner, 347 F3d 1212 (11th Cir 2003) (no interspousal immunity for eavesdropping via extension telephone when children's welfare not at issue).

(21.) People v Alexander, 244 Ill App 3d 441, 613 NE2d 385 (3d D 1993).

(22.) See In re Marriage of Roney, 332 Ill App 3d 824, 773 NE2d 213 (4th D 2002) (party could properly refuse to tender tapes obtained via eavesdropping).

(23.) See, for example, People v Ledesma, 206 Ill 2d 571, 795 NE2d 253 (Ill 2003), overruled on other grounds by People v Pitman, 211 Ill 2d 502, 813 NE2d 93 (2004).

(24.) See People v Wilson, 196 Ill App 3d 997, 1009, 554 NE2d 545, 551-52 (1st D 1990).

(25.) See Almquist (cited in note 15).

(26.) See In re Marriage of Karonis, 296 Ill App 3d 86, 693 NE2d 1282 (2d D 1998).

(27.) See, for example, Fraser v Nationwide Mut Ins Co, 352 F3d 107 (3d Cir 2003).

(28.) US v Councilman, 418 F3d 67 (1st Cir 2005) (en banc).

(29.) See O'Brien v O'Brien, 899 So2d 1133 (Fla App 5th D 2005).

(30.) See Evans v Evans, 169 NC App 358, 610 SE2d 264 (2005).

(31.) See Theofel v Farey-Jones, 341 F3d 978 (9th Cir 2003), modified by 359 F3d 1066 (2004).

(32.) See People v Gariano, 366 Ill App 3d 379, 852 NE2d 344 (1st D 2006).

(33.) See Byrne v Byrne, 650 NyS 2d 499, 168 Misc 2d 321 (Ny Sup 1996).

Alison G. Turoff is an associate attorney with Colky & Kirsh, Ltd in Chicago and has written two other articles for the Illinois Bar Journal.
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Author:Turoff, Alison G.
Publication:Illinois Bar Journal
Date:Jul 1, 2008
Words:3832
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